WALTERS: Defining terms of environmental law

DAN WALTERS

BY DAN WALTERS | March 19, 2013

What's in a word? Apparently a lot, when it comes to overhauling the California Environmental Quality Act.

Two months ago, Gov. Jerry Brown, in plugging CEQA reform, told legislators, "Our approach needs to be based more on consistent standards that provide greater certainty and cut needless delays." The key word was "standards," which has been a byword of business and local-government groups seeking to bring more certainty to environmental reviews of private and public projects and reduce the incidence of litigation after government agencies give their approvals.

If a project meets the "standards" that those agencies impose after weighing the pros and cons, they argue, opponents should not be able to string out the process further with endless rounds of litigation. They cite specific cases in which the costs and delays of lengthy litigation rendered the projects unfeasible.

When Senate President Pro Tem Darrell Steinberg introduced a rough draft of CEQA changes, he didn't use the word "standards," although he did refer to "thresholds" that would "allow agencies to standardize mitigation of those impacts."

Was that the same thing? Proponents of change appear to believe that "thresholds" have the same meaning as "standards." However, the Center for Biological Diversity, one of the environmental groups that oppose major changes in CEQA, praised Steinberg for having "chosen not to pursue a so-called &amp;&lsquo;standards-based' approach to (CEQA) that would actually undermine public participation and shield developers and governmental officials from responsibility for environmental damage."

Whatever word one uses, the limitation, or even elimination, of post-approval litigation is clearly the single most important issue in the looming political battle over CEQA.

Litigation, or the threat of litigation, is the most potent weapon in the procedural arsenal of environmental groups and others — labor unions, particularly — that oppose particular projects. It's leverage to either kill projects or force their sponsors to make concessions — including project labor agreements and other goals of labor unions.

Not surprisingly, therefore, imposing limits on litigation is the most important goal of those seeking CEQA changes. The CEQA Working Group, which supports reform, said it wants legislation "stamping out litigation abuses of CEQA that harm responsible economic growth and job creation in California."

With labor unions and environmental groups, two major Democratic constituencies, opposed to major CEQA changes, the outcome is uncertain, especially since the issue embraces two of the Capitol's hoariest conflicts — between business and environmentalists over regulation, and between business and trial attorneys over limiting litigation.